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Judge Bars Statements Made by Guantánamo Detainees During F.B.I. Interrogations Judge Bars Statements Made by Guantánamo Detainees During F.B.I. Interrogations
(about 17 hours later)
In a potentially major setback for the effort to prosecute five Guantánamo Bay detainees accused of aiding the Sept. 11, 2001, attacks, a military commission judge ruled on Friday that prosecutors may not use a key piece of evidence against the men: statements they made to F.B.I. interrogators shortly after their transfer out of the C.I.A.’s “black site” prisons nearly a dozen years ago.In a potentially major setback for the effort to prosecute five Guantánamo Bay detainees accused of aiding the Sept. 11, 2001, attacks, a military commission judge ruled on Friday that prosecutors may not use a key piece of evidence against the men: statements they made to F.B.I. interrogators shortly after their transfer out of the C.I.A.’s “black site” prisons nearly a dozen years ago.
The decision brought to a head a long-running and potentially irreconcilable tension in the case: Defense lawyers say they need to thoroughly investigate the torture of their clients at the hands of the C.I.A. for there to be a fair death penalty trial. But the government says there is a national security imperative to keep certain facts related to that period — like the identities of C.I.A. personnel who worked at certain prisons — secret.The decision brought to a head a long-running and potentially irreconcilable tension in the case: Defense lawyers say they need to thoroughly investigate the torture of their clients at the hands of the C.I.A. for there to be a fair death penalty trial. But the government says there is a national security imperative to keep certain facts related to that period — like the identities of C.I.A. personnel who worked at certain prisons — secret.
The ruling centered on a fight over a technique the F.B.I. used to try to get statements out of the detainees — including Khalid Shaikh Mohammed, the self-described architect of the attacks — that could be used as courtroom evidence, despite their abuse in C.I.A. custody.The ruling centered on a fight over a technique the F.B.I. used to try to get statements out of the detainees — including Khalid Shaikh Mohammed, the self-described architect of the attacks — that could be used as courtroom evidence, despite their abuse in C.I.A. custody.
To attenuate that, the bureau sent in a “clean team,” whose agents did not know what the detainees had previously said, to start over with questioning them. But defense lawyers argue that the lingering effects of their clients’ previous torture tainted those interrogation sessions, too.To attenuate that, the bureau sent in a “clean team,” whose agents did not know what the detainees had previously said, to start over with questioning them. But defense lawyers argue that the lingering effects of their clients’ previous torture tainted those interrogation sessions, too.
To make that case, defense lawyers said they needed to investigate what had happened to their clients in C.I.A. custody independently of restrictions the government imposed on their ability to speak to potential witnesses, including forbidding them from directly approaching agency personnel. Prosecutors offered summaries of what guards and doctors had seen and done, saying that was sufficient.To make that case, defense lawyers said they needed to investigate what had happened to their clients in C.I.A. custody independently of restrictions the government imposed on their ability to speak to potential witnesses, including forbidding them from directly approaching agency personnel. Prosecutors offered summaries of what guards and doctors had seen and done, saying that was sufficient.
But in a 36-page ruling handed down Friday, the judge, Col. James L. Pohl, said that those summaries were not an adequate substitute. While he upheld the rules the government imposed on the defense lawyers’ ability to investigate the C.I.A. in general, he also suppressed the F.B.I. statements as evidence because the rules were too restrictive for a fair fight over their admissibility.But in a 36-page ruling handed down Friday, the judge, Col. James L. Pohl, said that those summaries were not an adequate substitute. While he upheld the rules the government imposed on the defense lawyers’ ability to investigate the C.I.A. in general, he also suppressed the F.B.I. statements as evidence because the rules were too restrictive for a fair fight over their admissibility.
The summaries, he wrote, “will not provide the defense with substantially the same ability to investigate, prepare and litigate motions to suppress the F.B.I. clean team statements” because the restrictions on defense lawyers’ ability to talk to witnesses “will not allow the defense to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in C.I.A. custody the defense alleges constituted coercion.”The summaries, he wrote, “will not provide the defense with substantially the same ability to investigate, prepare and litigate motions to suppress the F.B.I. clean team statements” because the restrictions on defense lawyers’ ability to talk to witnesses “will not allow the defense to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in C.I.A. custody the defense alleges constituted coercion.”
As a result, he wrote, the government is not allowed to “introduce any F.B.I. clean team statement from any of the accused for any purpose.”As a result, he wrote, the government is not allowed to “introduce any F.B.I. clean team statement from any of the accused for any purpose.”
Colonel Pohl’s ruling was not yet available on the tribunal’s website, but a copy was obtained by The New York Times.Colonel Pohl’s ruling was not yet available on the tribunal’s website, but a copy was obtained by The New York Times.
[Read the ruling.][Read the ruling.]
The defense lawyers’ larger strategy has been to argue that because the United States government tortured their clients, it should not be permitted to execute them as mitigation — an issue that would come to a head during the sentencing phase after a trial and conviction. It is not clear how the reasoning behind Colonel Pohl’s decision to suppress the F.B.I. statements, if it stands, will affect that question. The defense lawyers’ larger strategy has been to argue that because the United States government tortured their clients, it should not be permitted to execute them as mitigation — an issue that would come to a head during the sentencing phase after a trial and conviction.
It is not clear how the reasoning behind Colonel Pohl’s decision to suppress the F.B.I. statements, if it stands, will affect that question.
While Colonel Pohl also ruled that the summaries were adequate for mitigation purposes, the defense is likely to argue on any appeal that death sentences should be off the table for the same reasons.
Asked for a comment on behalf of the prosecution, Cmdr. Sarah Higgins of the Navy, a spokeswoman for the Office of Military Commissions, said officials would “let the rulings speak for themselves when they post” on the tribunal’s website.Asked for a comment on behalf of the prosecution, Cmdr. Sarah Higgins of the Navy, a spokeswoman for the Office of Military Commissions, said officials would “let the rulings speak for themselves when they post” on the tribunal’s website.
But James Connell, a lawyer for another Sept. 11 defendant, Ammar al-Baluchi, hailed the ruling.But James Connell, a lawyer for another Sept. 11 defendant, Ammar al-Baluchi, hailed the ruling.
“Witnesses are the foundation of the American criminal justice system,” Mr. Connell said. “If the government prohibits the defense from investigating witnesses, the proceeding becomes more like a play than a trial.”“Witnesses are the foundation of the American criminal justice system,” Mr. Connell said. “If the government prohibits the defense from investigating witnesses, the proceeding becomes more like a play than a trial.”
Still, an appeal by prosecutors seemed likely.Still, an appeal by prosecutors seemed likely.
The chief prosecutor, Brig. Gen. Mark Martins of the Army, and his team had argued that the law permitted some concessions to national security imperatives in such a case, while playing up how much information the government had turned over in discovery about the black-site program, including summaries about what agency employees and contractors who served as guards, doctors and interrogators at the prisons saw and did. Most of those people are described using code names.The chief prosecutor, Brig. Gen. Mark Martins of the Army, and his team had argued that the law permitted some concessions to national security imperatives in such a case, while playing up how much information the government had turned over in discovery about the black-site program, including summaries about what agency employees and contractors who served as guards, doctors and interrogators at the prisons saw and did. Most of those people are described using code names.
After providing that information, the prosecution told defense lawyers last year that they were not allowed to directly approach people they believed might be such witnesses or to travel to countries they believed might have hosted prisons to ask questions. Rather, the defense has to go through the government to request interviews, prosecutors said, and the government in turn approaches witnesses and asks if they want to talk to defense lawyers while also telling them what they can and cannot discuss.After providing that information, the prosecution told defense lawyers last year that they were not allowed to directly approach people they believed might be such witnesses or to travel to countries they believed might have hosted prisons to ask questions. Rather, the defense has to go through the government to request interviews, prosecutors said, and the government in turn approaches witnesses and asks if they want to talk to defense lawyers while also telling them what they can and cannot discuss.
In practice, Colonel Pohl wrote, only a few of the dozens of witnesses the defense asked to speak with agreed to talk under those conditions.In practice, Colonel Pohl wrote, only a few of the dozens of witnesses the defense asked to speak with agreed to talk under those conditions.
The Sept. 11 case defendants offered to plead guilty in late 2008, but after the Obama administration took office, it tried to move the case to civilian court. After Congress blocked that option, the defendants were rearraigned before a Guantánamo tribunal in 2012 and pleaded not guilty. Years of pretrial hearings and delays have ensued.The Sept. 11 case defendants offered to plead guilty in late 2008, but after the Obama administration took office, it tried to move the case to civilian court. After Congress blocked that option, the defendants were rearraigned before a Guantánamo tribunal in 2012 and pleaded not guilty. Years of pretrial hearings and delays have ensued.